Loan Agreement - Islandsbanki-FBA hf. and Sturlugata 8 ehf.
LOAN AGREEMENT
(Loan in foreign currency)
BETWEEN
STURLUGATA 8 EHF
(as borrower)
and
ISLANDSBANKI-FBA HF.
as lender
<PAGE>
Table of Contents
<TABLE>
<S> <C>
1. AMOUNT OF LOAN AND DISBURSEMENT 3
2. REPAYMENT 3
3. INTEREST, INTEREST ADJUSTMENTS AND PAYMENT OF INTEREST 4
4. COSTS 5
5. INSURANCE 5
6. CONDITIONS FOR DISBURSEMENT 5
7. DECLARATIONS OF THE BORROWER 6
8. PAYMENT OF TAXES IN CONNECTION WITH THE CONCLUSION OF
THE AGREEMENT 6
9. COVENANTS 7
10. EVENTS OF DEFAULT - REMEDIES 7
11. NOTICES 8
12. FORCE MAJEURE 9
13. FURTHER PROVISIONS 9
ANNEX 1 - LOAN DISBURSEMENT APPLICATION 10
ANNEX 2 - FOREIGN CURRENCY ACCOUNTS 11
</TABLE>
2
<PAGE>
Islandsbanki-FBA hf., State Reg. No. 550500-3530, Kirkjusandur 2, 155 Reykjavik,
hereinafter referred to as the Lender, and Sturlugata 8 ehf., State Reg. No.
581201-2190, Sturlugata 8, Reykjavik, hereinafter referred to as the Borrower,
enter into the following
LOAN AGREEMENT
on a loan for 7 years to the amount of
USD 4,000,000.- FOUR MILLION 00/100 US DOLLARS-
on the terms described herein.
1. Amount of Loan and Disbursement
The Borrower undertakes to borrow, and the Lender undertakes to lend the agreed
amount. The loan is available for disbursement as of the signature of this
Agreement until 31 January 2002. The loan shall be disbursed to the Borrower in
a single payment.
The Borrower shall send to the Lender a disbursement application with at least 2
working days' notice. The application shall contain an account number for the
deposit of the disbursement. A disbursement application form is attached to this
agreement as Annex 1.
In the event that the Borrower has not sent a written request for disbursement
before 29 January 2002 the loan offer of the Lender shall be withdrawn without
notice and without warning, provided that the Lender has not given written
confirmation to the contrary. In the event that the commitment of the Lender is
withdrawn pursuant to the above the Borrower shall pay the Lender all costs
incurred by the Lender as a result of this Agreement.
The Borrower intends to use the loan to finance his purchase of the property
Sturlugata 8, Reykjavik, from Islensk Erfoagreining ehf.
2. Repayment
The Borrower undertakes to repay the loan in 28 equal instalments every 3
months, starting on 1 MARCH 2002.
The loan shall be repaid into the foreign currency account of the Lender,
identified in Annex 2.
In the event that the payment date of instalments and/or interest does not fall
on a banking day, the payment date shall be transposed to the banking day
immediately following, unless such day is in the following month, in which case
the payment date shall be transposed to the immediately preceding banking day.
The real estate assessment for the property Sturlugata 8, Reykjavik is not
available at the time of signature of this Loan Agreement. In the event that the
real estate assessment of the property, i.e. the site and buildings, is valued
at less than ISK 2,250,000,000.-, the Borrower undertakes to pay a separate
instalment on the loan on the first instalment date. The amount of the
instalment shall be equal to the difference between the real estate assessment
and the amount of ISK 2,250,000,000.- mentioned above, and the payment shall be
made in US dollars.
3
<PAGE>
In the period from the disbursement of the loan until 31 December 2004, the
Lender may require an advance payment on the loan if the conversion value of the
US dollar, as posted by the Central Bank of Iceland on the due date of the
interest and instalments, has fallen by more than 15% from the posted rate of
the Central Bank of Iceland on the disbursement date of the loan and the
restated position of the bonds issued on 1 January 2002, 1st class, by
Sturlugata 8 ehf. in the total amount of ISK 1,400,000,000.- and adjusted debts
pursuant to this Agreement are higher than, the lesser of ISK 2,000,000,000 or
80% of the discounted replacement value of installations on the site in
accordance with public records plus the added restated price of the rights to
the site. The amount of this refund shall be calculated so that the outstanding
balance of the loan, restated in Icelandic kronur on the due date, shall not be
in excess of the restated amount of the loan in relation to the price of the US
dollar on the date of disbursement, having taken into account the prepayment
pursuant to this provision.
A banking day is a working day when banks are open in Reykjavik and London.
The place of payment is with the Lender.
3. INTEREST, INTEREST ADJUSTMENTS AND PAYMENT OF INTEREST
(a) The loan shall carry an interest rate equivalent to 3-MONTH LIBOR
RATES as determined for US dollar, as current at any time, plus a
margin of 3.0% - THREE-POINT-ZERO PERCENT. LIBOR (London Inter Bank
Offered Rate) interest refers to interest on the London Interbank
Market as posted at 11 a.m., local time, in London on the Reuter BBA
screen.
(b) In the event of default by the Borrower on a debt pursuant to this
Loan Agreement, the Borrower shall pay penalty interest
corresponding to the base interest rate plus the margin referred to
in item (a) above, plus the added default premium of 3.0% -
THREE-POINT-ZERO PERCENT of the due amount or called-in amount from
the due date to the date of payment.
(c) In the event of default by the Borrower on the loan pursuant to this
Loan Agreement, the Lender may, furthermore, convert the loan into
Icelandic kronur in accordance with the posted selling rate of the
Lender for the currencies of which the loan is comprised at the
close of the date of calling. Default interest shall then be paid
pursuant to the decision of the Central Bank of Iceland at any time
on default interest rates and default margins, cf. Article 6,
Paragraph 1 of the Interest Act No. 38/2001, on the due or called-in
amount from the due date to the date of payment. The Lender shall
notify the Borrower of the date of the intended conversion of the
debt with a prior notice of at least one week. Once the loan has
been converted into Icelandic kronur it may not be converted back
into the original currency without the written approval of the
Borrower.
Interest is calculated from the date of disbursement of the loan. The interest
shall be calculated so that on an annual basis the actual number of days is used
to multiply and then divided by 360.
The interest is determined in advance for three months at a time, two days prior
to the beginning of the next interest period. The first interest period may be
longer or shorter, as it begins on the date of the disbursement of the loan and
ends on 1 March 2002.
The interest is payable every three months on the same due dates as the
instalments.
4
<PAGE>
Unpaid default interest, in accordance with items (b) or (c) above, shall accrue
to the principal of the loan every 12 months, for the first time 12 months after
the first date of default.
The Lender may adjust the interest margin unilaterally on the due date 1 MARCH
2005. No later than 30 days prior to the stated due date, the Lender shall
notify the Borrower of the applicable margin as of that due date. In the event
that the Lender's decision on the margin is unacceptable to the Borrower, the
Borrower may pay the loan, including accrued interest and costs, in full, on the
review date of the interest without payment of a separate acceleration fee,
provided that he has informed the Lender of such intention with one weeks
notice.
4. Costs
The Borrower shall pay a facility fee of [CONFIDENTIAL TREATMENT REQUESTED] of
the total amount, to be deducted from the first disbursement of the loan. The
Borrower undertakes to pay the collection costs of each interest or instalment
payment pursuant to the rates schedule of the Lender as current at any time as
well as any costs which may arise from collection measures taken as a result of
his default, at no cost to the Lender.
In addition, the Borrower shall pay the costs of individual support services of
the Lender pursuant to the rates schedule of the Lender as current at any time,
such as costs resulting from transfers and the cost of delivering payments to
the Lender.
5. Insurance
As surety for the prompt and full payment of the loan the Borrower will issue a
General Bond to the Lender, in the amount of USD 4,000,000.- , secured by a
first-rank mortgage in the property Sturlugata 8, Reykjavik along with a General
Bond in the amount of USD 400,000.- secured by a second-rank mortgage on the
property Sturlugata 8, Reykjavik, concurrently, the second-rank mortgage secures
a General Bond in the amount of ISK 140,000,000.-, issued on 21 December 2001.
The first-rank mortgage secures concurrently a General Bond in the amount of ISK
1,400,000,000.-, issued 21 December 2001.
As surety for the prompt and full payment of the loan, Islensk erfoagreining
ehf., State Reg. No. 691295-3549, Lynghals 1, Reykjavik pledges all shares in
Sturlugata 8 ehf. to the Lender.
By their signature of this Loan Agreement and as surety for the prompt and full
payment of the loan, deCode genetics Inc, Delaware, US and Islensk erfoagreining
ehf., Lynghals 1, Reykjavik, assume liability for the loan, in solidum, as
guarantors. The guarantee covers the payment of the amount of the loan including
all interest and costs of any kind. The guarantee shall remain in effect
regardless of whether a payment deferral is granted on one or more occasion,
until such time as the loan is fully discharged.
6. Conditions for Disbursement
The Borrower's delivery of the following documents to the Lender, of the content
and in the form acceptable to the Lender, is a prerequisite for the disbursement
of the loan pursuant to this agreement:
1. The Articles of Association of the Borrower and guarantors.
2. Decision of the Board of Directors of the Borrower on the borrowing and
mortgage.
3. Decision of the Board of Directors of Islensk erfoagreining ehf. on the
mortgaging of assets and guarantee pursuant to Section 5 hereof and power
of attorney to sign the loan documents.
5
<PAGE>
4. Decision of deCode genetics Inc. on a guarantee pursuant to Section 5
hereof and power of attorney to sign the loan documents.
5. Certification that the Borrower has purchased insurance for the mortgaged
property.
6. Registered Bonds pursuant to Section 5 in the amount of USD 4,000,000.-
and USD 400,000.-
7. Written disbursement instructions.
8. Certified copy of the Site Lease Agreement for the site Sturlugata 8.
9. Certified copy of the Lease Agreement between Islensk erfoagreining ehf.
and Sturlugata 8 ehf. concerning the property Sturlugata 8.
10. Confirmation from the share registry of Sturlugata 8 ehf. that the
mortgaging of the shares pursuant to Section 5 has been entered in the
Company's share register.
7. Declarations of the Borrower
By his signature on this Loan Agreement the Borrower declares to the Lender
that:
a) all the necessary decisions taken on the part of the borrower in order to
establish a binding agreement were made in a lawful manner,
b) the Agreement is signed on behalf of the Borrower by parties legally
entitled to do so and a contract has been established which is binding for
the Borrower in every respect,
c) the Agreement does not violate the Articles of Association of the Borrower
or any agreement that the Borrower has entered into with any third party
or its parent company or any subsidiary,
d) the Borrower is not engaged in any litigation or disputes that could have
a substantial negative impact on his financial standing or qualification
to fulfil his obligations under the provisions hereof,
e) none of the events of default described in Section 10 are present,
f) he has provided the Lender with all the information necessary to evaluate
his financial standing,
g) the information contained in the Agreement or that the Borrower has given
in connection with its content, is adequate and materially correct, and
h) the accounts of the Borrower are in accordance with applicable laws and
generally accepted accounting standards.
The above information from the Borrower shall be regarded as repeated on the due
dates of the interest and / or instalments unless specifically stated otherwise
by the Borrower.
8. Payment of Taxes in Connection with the Conclusion of the Agreement
The Borrower shall pay all public levies which may be imposed on the Agreement
or payments pursuant to the Agreement at no cost to the Lender.
6
<PAGE>
9. Covenants
The Borrower and the guarantors undertake to observe the following terms until
the debt pursuant to the Loan Agreement is paid in full:
i. NOTICE OF DEFAULT: The Borrower and the guarantors undertake to notify the
Lender in writing without delay if it comes to their attention that an
event of default has taken place.
ii. ANNUAL ACCOUNTS AND INTERIM ACCOUNTS: The Borrower and the guarantors
undertake to send to the Lender audited Annual Accounts as well as
reviewed semi-annual accounts no later than four months following the
close of the accounting period. The Annual Accounts shall be audited and
prepared in accordance with legislation and accepted accounting standards.
iii. SALE OF MORTGAGED PROPERTY: The Borrower and Islensk erfoagreining ehf.
undertake not to sell the property mortgaged in security of this Agreement
without the prior approval of the Lender.
iv. BAN ON MERGERS OR DEMERGERS: The Borrower undertakes not to merge with
another company or companies or to divide the company into two or more
independent limited liability companies without the approval of the
Lender.
v. INSURANCE: The Borrower undertakes to insure the mortgaged property for
its actual worth for the entire term of the Agreement.
vi. RESTRICTIONS ON CHANGING THE OPERATION OR OBJECT OF THE BORROWER. The
Borrower undertakes to not to change his operations in such a way as to
require amendment of the Company's object in its Articles of Association.
vii. DISPOSAL OF INSURANCE COMPENSATION, NOTIFICATION REQUIREMENT: the Borrower
undertakes to inform the Lender immediately if circumstances arise where
the Borrower is, or may be, entitled to insurance compensation in respect
of damage to the mortgaged property if the damage is valued in excess of
ISK 10,000,000.- Furthermore, the Borrower undertakes not to dispose of
such payments except in consultation with and with the approval of the
Lender.
viii. DELIVERED STATEMENTS: The Borrower warrants that the information provided
in connection with this Agreement is correct. The Lender is entitled to
request confirmation that such information is correct at any time during
the term of effect of the Agreement.
ix. DISPOSAL OF THE LOAN: The Borrower undertakes to dispose of the loan for
the purpose that it was intended.
10. Events of Default - Remedies
The following shall constitute events of default on the part of the Borrower
under this Agreement:
i. the Borrower fails to pay on the correct due date or in the correct
currency, and such default continues for longer than 14 days from the due
date;
ii. The Borrower repeatedly fails to pay at the correct time and in the
correct currency;
iii. a debt or commitment of the Borrower, extraneous to this Agreement,
amounting to over USD 1,000,000.- or an equivalent amount in any other
currency, is defaulted in such a way that it gives rise to the right to
call in the debt, unless such default is the result of a reasonable
protest on the part of the Borrower to such a claim and that a proper
defence is maintained.
7
<PAGE>
iv. the debt of the Borrower, according to the General Bonds issued
concurrently with this loan (first-class 2002), is defaulted and such
default continues for longer than 14 days from the due date,
v. the Borrower and/or the guarantors violate Section 9 concerning the
insurance of the mortgaged property (v) and the sale of the mortgaged
property (iii),
vi. the Borrower and/or the guarantors violate other provisions of Section 9
than those described in Section 10 (iv) and such violation continues for
longer than 15 days after the Lender has sent the Borrower a request for
remedy,
vii. the Borrower's or the guarantor's assets are subjected to attachment, a
request is submitted for the enforced auction of their assets, they
petition for a moratorium on debts, they seek formal or informal
composition agreements with their creditors on the cancellation of debts
or a request is made for their estates to be subjected to bankruptcy
proceedings,
viii. a request is made that the Borrower's company or the guarantor's company
be dissolved
ix. any information from the Borrower or the guarantor and/or the obligations
undertaken by the Borrower or the guarantor in accordance with this
Agreement prove to be substantially wrong, inadequate or misleading when
they were submitted to the Lender in such a way that it would probably
have affected the Lender's willingness to grant the loan,
x. any instances or circumstances are present that may, in the opinion of the
Lender, have a substantial negative effect on the Borrower's or the
guarantor's ability to fulfil their obligations pursuant to this
Agreement.
In the event of default, as defined in this Section, the lender may, without
notice or warning, call in the entire remainder of the loan together with
accrued interest and other payments due from the Borrower pursuant to this
Agreement. The Borrower shall pay default interest on the due or called-in
amount pursuant to Section 3 of the Agreement.
When the loan is due in accordance with the above, the Lender is entitled,
without further notice, to seek enforcement of his claims in the security
provided by the Borrower to the Lender. The Lender may decide, at its sole
discretion, whether to seek enforcement of all the security given or any part of
the security, and, if the latter, in what order.
11. Notices
All notices sent by the parties to one another pursuant to this Agreement shall
be sent as specified below:
Islandsbanki, Attn. Corporate Finance Division, Kirkjusandur 2, 155 Reykjavik.
Fax. 580-5110
Sturlugata 8 ehf., Attn. Management, Sturlugata 8, 101 Reykjavik. Fax. 570-1981
Islensk erfoagreining, Attn. Chief Financial Officer, Sturlugata 8, 101
Reykjavik. Fax 570-1981
deCode genetics Inc., Attn. CEO, Sturlugata 8, 101 Reykjavik. Fax 570-1981
Notices may be sent by fax, provided that the sender takes full responsibility
that such notices are received by the recipient. The Borrower will notify the
Lender promptly of any change in his address, telephone number, e-mail address
or other comparable information.
8
<PAGE>
12. Force Majeure
In the event of a substantial change in the business terms of the Lender as a
result of events for which the Lender cannot be held responsible, and do not
relate to his financial standing and lending capacity all other things being
equal, e.g. changes in loan markets, government decisions, war, nuclear
accidents or incidents that can be classified as events of force majeure
incidents, with the result that the Lender is unable to obtain overseas loan
capital for the financing of this Loan Agreement on similar terms as those
anticipated on its negotiation, the Lender may, following prior notification to
the Borrower, call in the balance of the loan with 60 days' of notice. The
Lender is not responsible for any potential losses incurred by the Borrower in
connection with such a calling in of the balance.
13. Further Provisions
Headings in this Agreement are solely for convenience and have no substantive
significance for this Agreement.
Any disputes arising in respect of this Agreement shall be referred to the
District Court of Reykjavik.
This Agreement is concluded in 11 numbered pages [Icelandic original: 10 pages]
and in two copies, one for each party.
In witness whereof, the parties have signed this agreement in the presence of
witnesses to the correct date and signature.
Witnesses to the correct date, Reykjavik, 21 December 2001
signature and financial competence of the
parties:
Sigurgeir Guolaugsson [sign.] On the Board of Directors of
Id. No. 290876-3709 Sturlugata 8 ehf.
Steinunn Kristin Poroardottir [sign.] Tomas Sigurosson [sign.]
Id. No. 090472-4379
In agreement with the above as guarantors: For Islandsbanki-FBA hf.
For Islensk erfoagreining ehf. signature illegible
Tomas Sigurosson [sign.] Erlendur Magnusson [sign.]
For deCODE genetics, Inc.
Tomas Sigurosson [sign.]
9
<PAGE>
ANNEX 1 - LOAN DISBURSEMENT APPLICATION
Islandsbanki
Corporate Finance Division
Kirkjusandur 2
155 Reykjavik
[Place], [Date]
Subject: Request for disbursement of loan.
Pursuant to Section 1 of the Loan Agreement between [the Borrower] and
Islandsbanki-FBA hf., dated [date] on a loan in the amount of [currency]
[amount]-, a request is hereby submitted for the loan to be disbursed as
follows:
Loan[or part thereof in [currency]:]
Date of Disbursement:
Recipient of Disbursement: [Name, Id. No., Address]
Account Number
Receiving Bank
Notes [if appropriate]
Respectfully,
10
<PAGE>
ANNEX 2 - FOREIGN CURRENCY ACCOUNTS
Foreign currency accounts for the payment of loans
when paying in foreign currency
Islandsbanki
Corporate Finance Division
Kirkjusandur 2
155 Reykjavik
DOMESTIC USD ACCOUNT
<TABLE>
<CAPTION>
BRANCH ACCT. TYPE NO. ACCOUNT NO CURRENCY
<S> <C> <C> <C> <C>
500 38 119160 USD
</TABLE>
OVERSEAS USD ACCOUNT
<TABLE>
<CAPTION>
Currency banki Swiftcode Account number
--------------------------------------------------------------------------------
<S> <C> <C> <C>
USD Chase Manhattan Bank, New York CHASU33 544-7-21738
</TABLE>
11